The High Court said it would make an order quashing the Minister for Justice’s decision to refuse a Somali teenager’s visa appeal, finding that the appeal decision was flawed on several grounds. The court had not yet made its final order: it invited written submissions on the order and costs, and listed the case for mention on 12 July 2023.
The applicant, identified in the judgment as N.I., is a minor and an orphan. She sought a visa to join her aunt and next friend, Nura Ali Hassan, in Ireland. The Minister refused the appeal on 28 February 2022. The applicant then brought judicial review proceedings seeking certiorari, an order quashing that decision.
The judge found that the Minister’s conclusion that there was no documentary evidence of a family relationship gave too little weight to a Somali court guardianship order. That order transferred responsibility for the child to Hassan and described her as the child’s aunt. The judge also said the Minister interpreted the order too narrowly by concluding that it did not authorise the sponsor to bring the child out of Somalia.
A further flaw was the appeal officer’s extensive focus on adoption, which was not part of the applicant’s case and had not been raised in the first-instance refusal. The judge found that relying on an issue never put to the applicant for comment breached fair procedures and fatally flawed the decision.
The court also found that the decision did not adequately consider the consequences for a 14-year-old orphan left in Ethiopia in a neighbour’s care without family support. It said the applicant’s circumstances were difficult to reconcile with the finding that there were no exceptional humanitarian circumstances warranting departure from the policy’s financial requirements. The judge also found that the decision overlooked evidence of money sent by the sponsor to the applicant’s aunts and to the neighbour caring for her, which the court considered a significant contribution to the child’s upkeep.
The judge rejected the argument that the Minister was at fault for not requesting DNA evidence. The applicant had obtained a test after the refusal, but the court said that later evidence could not be used to assess the legality of the decision at the time it was made. The judgment did not resolve the constitutional or European Convention arguments, as the other grounds were sufficient to set aside the decision.
The judgment was delivered electronically on 23 June 2023. The parties were given two weeks to provide submissions on the final order, costs and any other matters. The matter was listed for mention at 10.30am on 12 July 2023.